TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 780
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.... consideration of Rs. 6,00,00,000/- upon making payment of Rs. 29,40,000/- as stamp duty in terms of Jantri value prevailing as on 23.02.2011. The purchaser received the sale consideration on various dates i.e. on 22.04.2010, 26.05.2010 and 09.06.2010 by cheques. The appellant herein declared the sale consideration of Rs. 3,00,00,000/- as received by him and computed long term capital gain for A.Y. 2011-12 against which exemption of Rs. 2,80,67,475/- was claimed under Section 54F of the Act on the basis of the construction of residential house. However, the Ld. AO took into consideration the date of deed of registration of the said sale deed as on 05.08.2011 when the said document was registered in the office of the sub-registrar upon making further payment of Rs. 52,82,600/- on 04.08.2011 towards the stamp duty in terms of the Jantri rate prevailing on that date. The Ld. AO taking into consideration this particular aspect of the matter adopted the sale consideration on land of Rs. 16,78,08,163/- as on 05.08.2011 under Section 50C of the Act and further computed the long term capital gain in A.Y. 2012-13 upon calculating the appellant's share at Rs. 8,39,04,081/-. Resultantly the ....
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....the said land was already handed over to the buyer as on 23.02.2011 which is also reflecting in the said deed of sale. Since the consideration received in full and possession therein was also handed over to the buyer on 23.02.2011 the transfer actually took place in the Financial Year 2010-11 i.e. A.Y. 2011-12 and the appellant rightly offered capital gain in A.Y. 2011-12 in terms of the provisions of the Act. The transfer since does not fall in A.Y. 2012-13 the addition on that basis is not sustainable in the eye of law as of the argument advanced by the Ld. Senior Counsel appearing for the assessee. 6. We have heard the rival submissions made by the respective parties and we have also perused the relevant materials available on records including the Deed of Sale dated23.02.2011. Upon perusal of the entire set of documents it appears that the deed of sale was made on 23.02.2011 upon making payment of Rs. 29,40,000/- towards the stamp duty for consideration of Rs. 6,00,00,000/-. It further appears that the payment of sale consideration was made through account payee cheques on 22.04.2010, 26.05.2010 and 09.06.2010 and the possession of the property was handed over to the buyer as ....
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....urchaser started enjoying the possession of the property upon making payment for the same. Merely because the sale deed was executed on a letter date only to invoke taxing statute the "transfer" of the property cannot be questioned when the right, title and interest in regard to the property already been transferred and/or devolved upon the purchaser by virtue of which the possession of the property had started to be enjoyed by the purchaser. Thus, the transfer in the instant case took place on 23.02.2011 i.e. in A.Y. 2011-12 and ultimately got registered on 05.08.2011 i.e. in A.Y. 2012-13. 7. In this respect we have considered the judgment passed by the Jurisdictional High Court in the case of Arundhati Balkrishna vs. CIT 138 ITR 245 (Guj.). Upon considering the provision of Sec. 47 of the Registration Act and Section 45 of the Income Tax Act, 1961 the Hon'ble Court has been pleased to hold as follows:- "In so far as the expression 'transfer of capital asset effected in the previous year' occurring in section 45 is concerned, it is not possible to take the view that the transfer is effected on the date on which the document is copied out in the books of the Registrar. It could ....
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.... thought fit to have the meaning of the word provided in different statute specific provision has been made. In our opinion, therefore, 'transfer' as defined in the Act is to be given simple meaning as indicated. There are various methods by which there can be avoidance of tax. The tax evaders always keep faith in their counterparts. Even property is being transferred by merely executing special power of attorney on the stamp paper of Rs. 20 and the transfer deed is not executed as contemplated under the law. The transferor puts transferee in possession but in view of the document, namely, power of attorney executed by the transferor, it is said that the transferee is not the owner of the property though for all practical purposes transferee acts the owner, in view of irrevocable power of attorney. By this method tax evaders are securing double benefits, i.e., avoidance of income-tax and stamp duty. It seems that considering various devices which the tax evaders are applying, the Legislature, therefore, amended by inserting clauses in the definition of 'transfer' by clause (47) of section 2 which is as under: "(47) 'transfer', in relation to a capital asset, includes,- (i) th....